Opinion
November 18, 1940.
December 11, 1940.
Appeals — Review — Order refusing new trial — Discretion of lower court.
The appellate court will not reverse the court below for refusing to grant a new trial on the ground that the verdict was against the weight of the evidence unless it clearly appears that the lower court abused its discretion in so deciding.
Appeal, No. 133, Oct. T., 1940, from judgment of C.P. Del. Co., March T., 1939, No. 301, in case of Saverio Barbano v. Concetta Barbano et al.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES and HIRT, JJ. Judgment affirmed.
Replevin. Before MacDADE, J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiff against wife defendant, and verdict in favor of other defendant. Motions by wife defendant, for new trial and for judgment n.o.v. dismissed, and judgment entered on verdict. Defendant appealed.
Errors assigned related to the action of the court below in dismissing defendants' motion for a new trial and in entering judgment for plaintiff.
Harrold R. Gill and Edward D. McLaughlin, for appellant.
Raymond E. Larson, for appellee.
Submitted November 18, 1940.
The statement of questions involved presented by the appellant is, "Was the verdict of the jury so contrary to the weight of the evidence as to require the granting of a new trial?"
We agree with the court below that it was not. The testimony on behalf of the appellant did not, in our opinion, overcome the prima facie evidence, or presumption of the appellee's title and right of possession of the stock certificate, the life insurance policy and the deed for the cemetery lot — the subjects of this replevin action — which attached by reason of their being issued in his name, as owner of the certificate of stock and cemetery lot and as the insured in the life insurance policy, (18 C.J.S. sections 264 and 476), supported, as it was, by his clear and positive testimony and by the circumstances attending their issue.
The case was submitted to the jury in a charge which was certainly as favorable to the appellant as she was entitled to, under the evidence; and the verdict of the jury in favor of the appellee was supported by the evidence, and was upheld by the court in banc.
We find no abuse of discretion by the lower court in refusing a new trial. See Keyser v. Joshua Davis B. L. Assn., 133 Pa. Super. 136, 2 A.2d 590.
Judgment affirmed.